GERMANY Law and Practice Contributed by: Tanja Schienke-Ohletz, Flick Gocke Schaumburg
Separation of Property In the case of separation of property, there are no property relations between the spouses; the assets of each spouse remain completely separate. No equali- sation takes place. Community of Property In the case of community of property, the assets of both spouses merge into joint property, known as the total property. The total property belongs to both spouses jointly – ie, they are joint owners and can only dispose of it jointly, unless the administration has been transferred to one spouse alone by marriage contract. In addition to the joint property, there is the separate property, which belongs to each spouse alone (eg, non-transferable rights), and the reserved property, which can be assigned to one spouse alone by mar- riage contract or third-party disposition. 4.2 Prenuptial and Postnuptial Agreements German law provides for marriage contracts both before and after marriage; they can be concluded by engaged couples or spouses who are already married. A marriage contract only makes sense if the spouses wish to deviate from the statutory matrimonial prop- erty regime of community of accrued gains. They can also remain in the community of accrued gains and modify it – eg, by excluding certain economic assets from the accrued gains or by agreeing on a lump sum to be paid out instead of the calculated accrued gains. The matrimonial property regime may also be effec- tively limited, insofar as the spouses have a certain degree of freedom of contract. For a marriage contract to be valid, it must be con- cluded in the presence of both parties and recorded by a notary. In terms of content, marriage contracts may, in principle, make extensive use of the spouses’ freedom of contract, but they are subject to judicial review: agreements that lead to a unilateral and unrea- sonable disadvantage for one spouse may be uncon- scionable and therefore invalid. In such a case, the statutory rights apply again, so this must be avoided in the marriage contract.
compulsory portion. The claim is regularly asserted through a step-by-step lawsuit: • first stage – information about the estate (if neces- sary, with supporting documents and valuation); • second stage – quantification of the compulsory portion; and • third stage – action for payment. 4. Marital Property and Succession 4.1 Property Regimes During Life and Deathtime Rights and Protections Community of Accrued Gains If the spouses do not enter into a marriage contract under German law, the statutory matrimonial property regime of community of accrued gains applies. This is characterised by the fact that the spouses’ assets remain separate. Each spouse remains the owner of their assets and may dispose of them alone. House- hold items, on the other hand, belong to both spouses jointly. Restrictions only apply if one spouse wishes to dispose of their entire assets or household items. In such a case, the consent of the other spouse is required. Only when this community of accrued gains is ter- minated does the spouse receive compensation for the accrued gains. A calculation is made to deter- mine who has acquired more accrued gains during the marriage. The spouse who has acquired more must transfer half of the accrued gains to the other spouse. However, the claim only arises if the community of accrued gains ends due to a change to another mat- rimonial property regime, in the event of the death of the spouse or in the event of divorce. In the event of inheritance, the surviving spouse in a community of accrued gains receives a lump-sum increase of one-quarter of their inheritance as a legal heir, regardless of the actual accrued gains. Alterna- tively, they can renounce the inheritance and instead demand the mathematically exact equalisation of accrued gains. The equalisation of accrued gains then takes place as a monetary claim against the estate.
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